<PAGE>
As filed with the Securities and Exchange Commission on May 4, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STERLING SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1873956
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
(214) 891-8600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------
JEANNETTE P. MEIER, ESQ. With a copy to:
Executive Vice President, CHARLES D. MAGUIRE, JR., ESQ.
Secretary and General Counsel Jackson & Walker, L.L.P.
Sterling Software, Inc. 901 Main Street
8080 North Central Expressway Suite 6000
Suite 1100 Dallas, Texas 75202
Dallas, Texas 75206 (214) 953-5850
(214) 891-8685
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
---------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum
of Securities to to be Offering Price Aggregate Amount of
be Registered Registered Per Unit(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.10 per share 3,873,203 shares $35.125 $136,046,291 $46,913
=============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock as reported by the New York Stock Exchange on May 1, 1995.
---------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
<PAGE>
PROSPECTUS
3,873,203 Shares
STERLING SOFTWARE, INC.
Common Stock
This Prospectus relates to the offer and sale by Sterling Software, Inc.
("Sterling" or the "Company") of up to 3,873,203 shares (the "Shares") of the
Company's common stock, par value $0.10 per share (the "Common Stock"), issuable
by the Company upon exercise of options (the "Options") granted or to be granted
from time to time to eligible persons pursuant to the provisions of the
Company's Non-Statutory Stock Option Plan (as amended through April 26, 1995,
the "Plan"). This Prospectus also relates to the offer and sale of up to
3,873,203 Shares by certain stockholders (the "Selling Stockholders") who hold
Shares acquired upon the exercise of Options.
The Shares may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on one or more exchanges, including the New York Stock Exchange (the
"NYSE"), or in the over the counter market, or in negotiated transactions, in
each case at prices and at terms then prevailing or at prices related to the
then current market price or at negotiated prices and terms. Upon any sale of
the Shares offered hereby, Selling Stockholders or such successors in interest
and participating agents, brokers or dealers may be deemed to be underwriters as
that term is defined in the Securities Act of 1933, as amended (the "Securities
Act"), and commissions or discounts or any profit realized on the resale of such
securities may be deemed to be underwriting commissions or discounts under the
Securities Act. See "Plan of Distribution."
The Common Stock is listed for trading on the NYSE under the symbol "SSW."
On May 1, 1995, the closing price of the Common Stock on the NYSE was
$35 1/8. The Company will pay all expenses in connection with this offering,
which are estimated to be approximately $64,000.00.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is __________, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60611 and at 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the NYSE. Reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
This Prospectus, which constitutes part of a Registration Statement filed
by the Company with the Commission under the Securities Act (the "Registration
Statement"), omits certain of the information contained in the Registration
Statement. Reference is made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the Common Stock
offered hereby. Copies of such Registration Statement are available from the
Commission. Statements contained herein concerning the provisions of documents
filed herewith as exhibits are necessarily summaries of such documents, and each
such statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
The Company's principal executive offices are located at 8080 North Central
Expressway, Suite 1100, Dallas, Texas 75206, and its telephone number at such
address is (214) 891-8600.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K (File No. 1-8465) for the year ended
September 30, 1994, as amended by Form 10-K/A Amendment No. 1, filed
January 25, 1995;
(ii) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter
ended December 31, 1994;
(iii) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994,
filed November 3, 1994;
-2-
<PAGE>
(iv) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 14, 1994;
(v) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 25, 1994;
(vi) Current Report on Form 8-K (File No. 1-8465) dated November 30,
1994, filed December 15, 1994;
(vii) Current Report on Form 8-K dated February 28, 1995, filed February
28, 1995; and
(viii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-108465),
filed March 7, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of Common Stock to be made hereunder
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing thereof. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for all purposes of this Prospectus to the
extent that a statement contained herein or therein or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates). Written
or telephonic requests for copies should be directed to the Company's principal
office: Sterling Software, Inc., 8080 N. Central Expressway, Suite 1100,
Dallas, Texas 75206, Attention: Jeannette P. Meier, Executive Vice President,
Secretary and General Counsel (telephone: (214) 891-8600).
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales of the
Shares offered hereby, except for proceeds from the exercise of the Options.
The proceeds received by the Company upon exercise of the Options will be used
for general corporate purposes, including, but not limited to, operating and
working capital requirements.
-3-
<PAGE>
SELLING STOCKHOLDERS
This Prospectus covers the purchase from the Company of up to
3,873,203 Shares in the aggregate, by the holders of the Options upon the
exercise thereof in accordance with their terms and the subsequent offer and
resale of Shares by certain stockholders who hold Shares acquired upon the
exercise of Options upon the exercise thereof.
Subject to the provisions of the Plan, a Stock Option Committee (the
"Committee") appointed by the Board of Directors of the Company will determine
from time to time the individuals from among the Company's key employees and
advisors, including officers and directors (other than non-employee directors)
of the Company, to whom Options will be granted and the number of shares of
Common Stock to be covered by each Option. The purchase price of Common Stock
subject to any Option granted pursuant to the Plan may not be less than the fair
market value of the Common Stock on the date of grant. Options held by
directors and executive officers of the Company are not transferable other than
by will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order, as defined by the Internal Revenue Code of 1986, as
amended, or Title I of the Employee Retirement Income Security Act, or the rules
thereunder. The Committee has the power to include in or amend any Option
agreement held by a participant who is not a director or executive officer of
the Company such provisions regarding transferability of the participant's
Options as the Committee, in its sole discretion, deems to be appropriate. The
Committee also has the power to include in each Option agreement such provisions
regarding exercisability following termination of a participant's employment or
service as a director (other than a non-employee director) or advisor for any
reason (including termination due to death or disability) as the Committee, in
is sole discretion, deems to be appropriate. Unless sooner terminated by action
of the Board, the Plan will terminate on December 31, 2011, and no Options may
be granted pursuant to the Plan after such date.
Certain information required pursuant to the Securities Act relating
to the Selling Stockholders will be provided by a Prospectus Supplement.
PLAN OF DISTRIBUTION
The Shares may be issued to the Selling Stockholders or any permitted
transferees from time to time by the Company upon exercise of the Options. The
Shares may be sold from time to time by any of the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. The Shares may
be disposed of from time to time in one or more transactions through any one or
more of the following: (i) to purchasers directly, (ii) in ordinary brokerage
transactions and transactions in which the broker solicits purchasers, (iii)
through underwriters or dealers who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Stockholders
or such successors in interest and/or from the purchasers of the Shares for whom
they may act as agent, (iv) the writing of options on the Shares, (v) the pledge
of the Shares as security for any loan or obligation, including pledges to
brokers or dealers who may, from time to time, themselves effect distributions
of the Shares or interests therein, (vi) purchases by a broker or dealer as
-4-
<PAGE>
principal and resale by such broker or dealer for its own account pursuant to
this Prospectus, (vii) a block trade in which the broker or dealer so engaged
will attempt to sell the Shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction and (viii) an exchange
distribution in accordance with the rules of such exchange, including the NYSE,
or in transactions in the over the counter market. Such sales may be made at
prices and at terms then prevailing or at prices related to the then current
market price or at negotiated prices and terms. In effecting sales, brokers or
dealers may arrange for other brokers or dealers to participate. The Selling
Stockholders or such successors in interest, and any underwriters, brokers,
dealers or agents that participate in the distribution of the Shares, may be
deemed to be "underwriters" within the meaning of the Securities Act, and any
profit on the sale of the Shares by them and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents may be
deemed to be underwriting commissions or discounts under the Securities Act.
The Company will pay all of the expenses incident to the offering and
sale of the Shares to the public other than underwriting discounts or
commissions, brokers' fees and the fees and expenses of any counsel to the
Selling Stockholders related thereto.
In the event of a material change in the plan of distribution
disclosed in this Prospectus, the Selling Stockholders will not be able to
effect transactions in the Shares pursuant to this Prospectus until such time as
a post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
LEGAL MATTERS
Certain legal matters in connection with the validity of the
securities offered hereby have been passed upon for the Company by Jackson &
Walker, L.L.P., Dallas, Texas. Michael C. French, a partner in Jackson &
Walker, L.L.P., is a director of the Company.
-5-
<PAGE>
EXPERTS
The consolidated financial statements and financial statement
schedules appearing in Sterling's Annual Report on Form 10-K for the year ended
September 30, 1994, as amended by Form 10-K/A Amendment No. 1 filed January 25,
1995, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports thereon included therein and incorporated by reference herein,
which as to the year 1992, are based in part on the report of Arthur Andersen
LLP, independent public accountants. Such consolidated financial statements and
schedules are incorporated herein by reference in reliance upon such reports
given upon the authority of such firms as experts in accounting and auditing.
The consolidated financial statements of KnowledgeWare, Inc. and
subsidiaries as of June 30, 1994 and 1993 and for each of the three years in the
period ending June 30, 1994 incorporated by reference in this Prospectus have
been incorporated herein on the report, which includes an explanatory paragraph
about KnowledgeWare, Inc.'s ability to continue as a going concern, of Coopers &
Lybrand L.L.P., independent certified public accountants, given upon authority
of that firm as experts in accounting and auditing.
-6-
<PAGE>
No person has been authorized in connection
with the offering made hereby to give any
information or to make any representation
not contained in this Prospectus and, if
given or made, such information or
representation must not be relied upon as
having been authorized by the Company.
This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy
any securities to any person or by anyone in
any jurisdiction where such offer or
solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create
any implication that the information contained
herein is correct as of any date subsequent to
the date hereof.
-----------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information................ 2
Incorporation of Certain
Documents by Reference............ 2
Use of Proceeds...................... 3
Selling Stockholders................. 4
Plan of Distribution................. 4
Legal Matters........................ 5
Experts.............................. 6
</TABLE>
3,873,203 SHARES
STERLING SOFTWARE,
INC.
COMMON STOCK
--------------------------------
PROSPECTUS
---------------------------------
__________, 1995
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The estimated expenses to be incurred in connection with the issuance
and distribution of the Common Stock covered by this Registration Statement, all
of which will be paid by the Registrant, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee......................... $46,913.00
Printing, Engraving and Filing Expenses.. 6,000.00
Accounting Fees and Expenses............. 5,000.00
Legal Fees and Expenses.................. 5,000.00
Miscellaneous............................ 1,087.00
----------
Total.................................... $64,000.00
==========
</TABLE>
Item 15. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers or former directors or officers and to
purchase insurance with respect to liability arising out of their capacity or
status as directors and officers. Such law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under a corporation's
certificate of incorporation, bylaws, any agreement or otherwise.
Article IX of the Company's Certificate of Incorporation, as amended,
provides that, to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. Article IX of the Company's
Restated Bylaws provides for indemnification of officers and directors. In
addition, the Company has entered into Indemnity Agreements with each of its
officers and directors pursuant to which such officers and directors may be
indemnified against losses arising from certain claims, including claims under
the Securities Act, which may be made by reason of their being officers or
directors.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
<PAGE>
Item 16. Exhibits.
--------
The following is a list of all exhibits filed as a part of this Registration
Statement on Form S-3, including those incorporated herein by reference.
Exhibit
Number Description of Exhibit
- -------- ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. (1)
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. (2)
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. (3)
4.4 Restated Bylaws of the Registrant. (4)
4.5 Form of Common Stock Certificate. (5)
5 Opinion of Jackson & Walker, L.L.P. (6)
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. (6)
23.2 Consent of Arthur Andersen LLP. (6)
23.3 Consent of Coopers & Lybrand L.L.P. (6)
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement). (6)
24 Power of Attorney (appearing on page II-6 of this Registration
Statement). (6)
25 None.
26 None.
II-2
<PAGE>
27 None.
28 None.
99 Form of Non-Statutory Stock Option Plan of the Registrant (as amended
through April 26, 1995). (6)
- ---------------
(1) Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein by
reference.
(3) Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
(5) Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
(6) Filed herewith.
II-3
<PAGE>
Item 17. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below authorizes Sterling L. Williams,
George H. Ellis and Jeannette P. Meier, and each of them, each of whom may act
without joinder of the others, to execute in the name of each such person who is
then an officer or director of the Registrant and to file any amendments to this
Registration Statement necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in respect thereof, in
connection with the registration of the securities which are the subject of this
Registration Statement, which amendments may make such changes in the
Registration Statement as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas on the 2nd day of May, 1995.
STERLING SOFTWARE, INC.
By: /s/ Jeannette P. Meier
--------------------------------
Name: Jeannette P. Meier
-------------------------
Title: Executive Vice President
------------------------
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
President, Chief
/s/ Sterling L. Williams Executive Officer 5/2/95
- ------------------------- and Director
Sterling L. Williams (Principal Executive Officer)
Executive Vice President
/s/ George H. Ellis and Chief 5/2/95
- ------------------------- Financial Officer
George H. Ellis (Principal Financial and
Accounting Officer)
/s/ Sam Wyly 5/2/95
- ------------------------- Chairman of the
Sam Wyly Board of Directors
/s/ Charles J. Wyly, Jr. 5/2/95
- ------------------------- Vice Chairman of the
Charles J. Wyly, Jr. Board of Directors
/s/ Evan A. Wyly 5/2/95
- ------------------------- Vice President and
Evan A. Wyly Director
- ------------------------- Director
Michael C. French
/s/ Robert J. Donachie 5/2/95
- ------------------------- Chairman of the Audit
Robert J. Donachie Committee and Director
/s/ Phillip A. Moore 5/2/95
- ------------------------- Executive Vice
Phillip A. Moore President,
Chief Technology Officer
and Director
- ------------------------- Director
Robert E. Cook
- ------------------------- Director
Donald R. Miller, Jr.
- ------------------------- Director
Francis A. Tarkenton
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- ------ ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. (1)
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. (2)
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. (3)
4.4 Restated Bylaws of the Registrant. (4)
4.5 Form of Common Stock Certificate. (5)
5 Opinion of Jackson & Walker, L.L.P. (6)
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. (6)
23.2 Consent of Arthur Andersen LLP. (6)
23.3 Consent of Coopers & Lybrand L.L.P. (6)
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed
as Exhibit 5 to this Registration Statement). (6)
24 Power of Attorney (appearing on page II-6 of this Registration
Statement). (6)
25 None.
26 None.
27 None.
<PAGE>
28 None.
99 Form of Non-Statutory Stock Option Plan of the Registrant (as amended
through April 26, 1995). (6)
- --------
(1) Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein by
reference.
(3) Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
(5) Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
(6) Filed herewith.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF JACKSON & WALKER, L.L.P. APPEARS HERE]
May 3, 1995
Sterling Software, Inc.
8080 N. Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration Statement on Form S-3 of Sterling Software, Inc.
Gentlemen:
We are acting as counsel for Sterling Software, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to 3,873,203 shares of the Company's Common Stock, par value $0.10 per share
(the "Shares"), which Shares are issuable upon the exercise of options granted
or to be granted from time to time under the Company's Non-Statutory Stock
Option Plan (the "Plan"). A Registration Statement on Form S-3 covering the
offering and sale of the Shares (the "Registration Statement") is expected to be
filed with the Securities and Exchange Commission (the "Commission") on or about
the date hereof.
In reaching the conclusions expressed in this opinion, we have examined and
relied upon the originals or certified copies of all documents, certificates and
instruments as we have deemed necessary to the opinions expressed herein,
including the Certificate of Incorporation, as amended, and the Restated Bylaws
of the Company and a copy of the Plan. In making the foregoing examinations, we
have assumed the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas, the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America, it is our opinion that the Shares, when issued and
sold in accordance with the terms of the Plan, will be duly authorized, validly
issued, fully paid and nonassessable.
<PAGE>
Sterling Software, Inc.
May 3, 1995
Page 2
You should be aware that we are not admitted to the practice of law in the
State of Delaware. Accordingly, any opinion herein as to the laws of the State
of Delaware is based solely upon the latest generally available compilation of
the statutes and case law of such state.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson & Walker L.L.P.
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) pertaining to the registration of 3,873,203
shares of common stock of Sterling Software, Inc. and to the incorporation by
reference therein of our reports dated December 1, 1994, with respect to the
consolidated financial statements and financial statement schedules of Sterling
Software, Inc. included in its Annual Report on Form 10-K for the year ended
September 30, 1994, as amended by Form 10-K/A Amendment No. 1, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Dallas, Texas
May 3, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 18, 1993
(except with respect to the matter discussed in Note 19 as to which the date is
July 1, 1993) included in Sterling Software, Inc.'s Form 10-K for the year ended
September 30, 1994 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Washington, D.C.
May 3, 1995
<PAGE>
Exhibit 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report, which includes an explanatory paragraph about
KnowledgeWare, Inc.'s ability to continue as a going concern, dated August 31,
1994, on our audit of the financial statements of KnowledgeWare, Inc. and
Subsidiaries. We also consent to the reference to our firm under the caption
"Experts".
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Atlanta, Georgia
May 4, 1995
<PAGE>
EXHIBIT 99
STERLING SOFTWARE, INC.
NON-STATUTORY STOCK OPTION PLAN
(As amended, through April 26, 1995)
1. Purpose. The purpose of the Non-Statutory Stock Option Plan of
Sterling Software, Inc. (the "Plan") is to provide key employees and advisors
with a proprietary interest in Sterling Software, Inc., a Delaware corporation,
and its subsidiaries (the "Company") through the granting of options ("Option"
or "Options") to purchase shares of the Company's authorized Common Stock, par
value $0.10 per share ("Common Stock"), in order to:
a. Increase the interest in the Company's welfare of those key
employees and advisors who share primary responsibility for the management,
growth and protection of the business of the Company;
b. Recognize the contributions made by certain key employees and
advisors to the Company's growth during its development stage;
c. Furnish an incentive to such key employees and advisors to
continue their services for the Company; and
d. Provide a means through which the Company may attract able persons
to engage as key employees and advisors.
With respect to persons subject to Section 16 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent that any provision of the Plan
or action by the Committee (as defined in Section 2) fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
2. Administration. With respect to Participants who are directors or
executive officers of the Company ("Insiders"), the Plan shall be administered
in accordance with the requirements of Rule 16b-3 of the Exchange Act by a
committee (the "16b-3 Committee") consisting of such number of directors as are
appointed by the Board of Directors of the Company (the "Board of Directors" or
"Board") from time to time in accordance with the requirements of Rule 16b-3.
With respect to all other Participants, the Plan shall be administered by the
Board or by a committee (the "Stock Option Committee") consisting of not less
than two directors of the Company appointed by the Board. As used herein,
"Committee" shall mean (i) with respect to decisions relating to Insiders, the
16b-3 Committee, and (ii) with respect to decisions relating to all other
Participants, the Stock Option Committee. Except as otherwise provided by the
terms of this Plan or by the Board, the Committee shall have all the power and
authority of the Board hereunder.
The Committee shall have full and final authority in its discretion, but
subject to the provisions of the Plan, to determine from time to time the
individuals to whom Options shall be granted and the number of shares to be
covered by each Option; to determine the time or times at which Options shall be
granted; to interpret the Plan and the instruments by which Options will be
evidenced; to make, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the instruments by which Options
shall be evidenced; with the consent of the Participant (as defined in Section
3), to modify or amend any Option agreement or waive any conditions or
restrictions applicable to any Option or the exercise thereof; and to make all
other determinations necessary or advisable for the administration of the Plan.
Non-employee members of the Board ("non-employee directors") shall not be
eligible to receive Options under the Plan except as expressly provided in
Section 21.
3. Participants. The Committee may, from time to time, select particular
key employees and advisors of the Company, or of any subsidiary of the Company,
to whom Options are to be granted, and upon the grant of such Options, the
selected key employees and advisors shall become Participants in the Plan. As
used herein, the term "Participant" means a key employee or advisor who accepts
an Option, or the estate, personal representative or beneficiary thereof having
the right to exercise an Option pursuant to its terms.
<PAGE>
4. Shares Subject to the Plan. The shares of Common Stock subject to
Options granted pursuant to the Plan shall be either shares of authorized but
unissued Common Stock or shares of Common Stock reacquired by the Company.
Shares that by reason of the expiration of an Option, or for any other reason,
are no longer subject to purchase pursuant to an Option granted under the Plan,
and shares from time to time rendered in payment of the exercise price of
Options, may be made subject to additional Options granted pursuant to the Plan.
The maximum aggregate number of shares of Common Stock that may be issued from
time to time pursuant to the Plan shall be 4,875,000; provided that the
Committee may adjust the number of shares available for Options, the number of
shares subject to and the exercise price of Options granted hereunder to effect
a change in capitalization of the Company, such as a stock dividend, stock
split, reverse stock split, share combination, exchange of shares, merger,
consolidation, reorganization, liquidation, or the like, of or by the Company.
5. Grant of Options. Options granted hereunder shall be evidenced by
written stock option agreements containing such terms and provisions as are
recommended and approved from time to time by the Committee, but subject to and
not more favorable than the terms of the Plan. The Committee may from time to
time require additional terms which the Committee deems necessary or advisable.
The Company shall execute stock option agreements upon instruction from the
Committee.
6. Maximum Amount of Stock Subject to Options. Subject to Section 21,
the maximum aggregate fair market value (determined as of the time the Option is
granted) of the Common Stock for which any Participant may be granted Options in
any calendar year shall be determined by the Committee in its discretion.
7. Option Exercise Price. The purchase price of Common Stock subject to
an Option granted pursuant to the Plan shall be no less than the fair market
value of the Common Stock on the date of grant.
8. Restrictions. The Committee may, but need not, at the time of
granting of an Option or at any subsequent time impose such restrictions, if
any, on issuance, voluntary disposition and release from escrow of any Options
including, without limitation, permitting exercise of Options only in
installments over a period of years.
9. Payment. Full payment for Common Stock purchased upon the exercise of
an Option shall be made at the time of exercise. No Common Stock shall be
issued until full payment has been made and a Participant shall have none of the
rights of a shareholder until shares of Common Stock are issued to him. Any
federal, state or local taxes required to be paid or withheld at the time of
exercise shall also be paid or withheld in full prior to any delivery of shares
of Common Stock upon exercise. Payment may be made in cash, in shares of Common
Stock then owned by the Participant, or in any other form of valid
consideration, or a combination of any of the foregoing, as required by the
Committee in its discretion. Shares of Common Stock tendered in payment of the
exercise price of any Options may be reissued to the Participant who tendered
the shares of Common Stock as part of the shares of Common Stock issuable upon
exercise of other Options granted from time to time pursuant to the Plan.
10. Transferability of Options. Except as may be agreed upon by the
Committee in accordance with the following paragraph, Options granted under the
Plan shall not be transferable other than by will or the laws of descent and
distribution, or pursuant to a qualified domestic relations order, as defined by
the Internal Revenue Code of 1986, as amended (the "Code"), or Title I of the
Employee Retirement Income Security Act ("ERISA"), or the rules thereunder. The
designation by the holder of an Option of a beneficiary shall not constitute a
transfer of the Option.
The Committee shall have the discretion to include in or amend any Option
agreement held by a Participant who is not an Insider such provisions regarding
transferability of the Options as the Committee, in its sole discretion, deems
to be appropriate.
11. Time of Granting of an Option. The grant of an Option pursuant to the
Plan shall be deemed to have occurred when the Stock Option Committee shall have
adopted a resolution approving such grant.
-2-
<PAGE>
12. Rights in Event of Death or Disability of Participant. The Committee
shall have discretion to include in each Option agreement such provisions
regarding exercisability of the Options following the death or disability of the
Participant as it, in its sole discretion, deems to be appropriate.
13. Termination of Option Rights and Awards. The Committee may provide in
each Option agreement for the circumstances under which Options granted
hereunder may terminate for any reason that the Committee, in its sole
discretion, deems appropriate.
14. Stock Purchased for Investment. At the discretion of the Committee,
any Option agreement may provide that the Option holder shall, by accepting an
Option, represent and agree on behalf of himself and his transferees by will or
the laws of descent and distribution that all shares of Common Stock purchased
upon the exercise of the Option will be acquired for investment and not for
resale or distribution, and that upon each exercise of any portion of an Option,
the person entitled to exercise the same shall furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
the shares of Common Stock are being acquired in good faith and for investment
and not for resale or distribution.
15. Amendment or Discontinuation. The Plan may be amended, altered or
discontinued by the Board or, if the Board has specifically delegated this
authority to the Committee, by the Committee, without approval of the
stockholders. In the event any law, or any rule or regulation issued or
promulgated by the Internal Revenue Service, Securities and Exchange Commission,
National Association of Securities Dealers, Inc., any stock exchange upon which
the Common Stock is listed for trading or other governmental or quasi-
governmental agency having jurisdiction over the Company, its Common Stock or
the Plan requires the Plan to be amended, the Plan will be amended at that time
and all Options then outstanding will be subject to such amendment.
16. Employment. This Plan and any Option granted under this Plan do not
confer upon the Participant any right to be employed or to continue employment
with the Company.
17. No Obligation to Exercise Option. The granting of an Option pursuant
to the Plan shall not impose any obligation upon the Participant to exercise
such Option.
18. Termination. Unless sooner terminated by action of the Board or, if
the Board has specifically delegated its authority to terminate the Plan to the
Committee, by the Committee, the Plan shall terminate on December 31, 2011, and
no Options may be granted pursuant to the Plan after such date.
19. Use of Proceeds. The proceeds derived from the sale of stock pursuant
to Options granted under the Plan shall constitute general funds of the Company.
20. Effective Date of the Plan. The Plan shall be effective, as amended,
on April 26, 1995.
21. Automatic Grants to Non-Employee Directors. Grants to non-employee
directors on or after the date hereof shall be solely pursuant to the following
formula: each non-employee director elected or appointed to the Board will
receive, at the time of his or her initial election or appointment, an automatic
grant of Options to purchase 40,000 shares of Common Stock. In addition, during
the term of this Plan, each non-employee director will receive an additional
automatic grant of Options to purchase 40,000 shares of Common Stock every five
years on the anniversary date of his or her initial election or appointment to
the Board, beginning on the fifth anniversary of his or her initial election or
appointment to the Board; provided that such non-employee director has served
continuously as a director of the Company since the date of his or her initial
election or appointment to the Board. The exercise price of each such Option
will be equal to the fair market value of the Common Stock on the date of grant.
Each such Option will become exercisable in cumulative annual installments of
one-fourth of the shares covered by the grant, commencing one year after the
date of grant, and will expire five years from the date of grant; provided that
each such Option will become immediately exercisable with respect to 100% of the
shares covered by the grant in the event of a change of control. A change of
control is deemed to occur (i) when any person, other
-3-
<PAGE>
than Sam Wyly or Charles J. Wyly, Jr., or an affiliate of either of them,
becomes the beneficial owner of securities of the Company representing 20% or
more of the combined voting power of the Company's outstanding securities, (ii)
if, during any three consecutive years, individuals who constitute the Board of
Directors at the beginning of such period cease to constitute a majority of the
Board of Directors or (iii) upon the occurrence of any event that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. This section shall not be amended more
than once in any six-month period, other than to comport with changes in the
Code or ERISA, or the rules thereunder.
STERLING SOFTWARE, INC.
By:
-----------------------------------------
Sterling L. Williams
President and Chief Executive Officer
-4-
